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The Protection of Traditional Knowledge and Traditional Cultural Expressions – with a Special Focus on the “Traditional” in Iranian Handmade Carpets Wend Wendland, Director, Traditional Knowledge Division, WIPO

The Protection of Traditional Knowledge and Traditional Cultural … · 2011-05-24 · handmade carpets, and then 2. Identify the means to establish and enforce rights in them, nationally

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Page 1: The Protection of Traditional Knowledge and Traditional Cultural … · 2011-05-24 · handmade carpets, and then 2. Identify the means to establish and enforce rights in them, nationally

The Protection of Traditional Knowledgeand Traditional Cultural Expressions –with a Special Focus on the “Traditional”in Iranian Handmade Carpets

Wend Wendland, Director,Traditional Knowledge Division,WIPO

Page 2: The Protection of Traditional Knowledge and Traditional Cultural … · 2011-05-24 · handmade carpets, and then 2. Identify the means to establish and enforce rights in them, nationally

Protecting Iranian handmade carpets

1. Locate precisely the protectable “intellectualproperties” embodied in and/or associated with Iranianhandmade carpets, and then

2. Identify the means to establish and enforce rights inthem, nationally and internationally

Options:

conventional IP systems

non-IP systems (e.g., CBD, 1992; UNESCOConventions 2003 and 2005)

nascent, inchoate IP systems for “traditionalknowledge” and “traditional cultural expressions”

Page 3: The Protection of Traditional Knowledge and Traditional Cultural … · 2011-05-24 · handmade carpets, and then 2. Identify the means to establish and enforce rights in them, nationally

Value and importance

Indigenous peoples, local communities and nations claim thatTK and TCEs are valuable and important for:

biodiversity conservationfood securityenvironmental managementclimate change mitigationsustainable developmentprimary healthcarecultural identity and social cohesioncultural diversityemployment, trade and income

Page 4: The Protection of Traditional Knowledge and Traditional Cultural … · 2011-05-24 · handmade carpets, and then 2. Identify the means to establish and enforce rights in them, nationally

Threats

The erosion of local knowledge systems: threats to theirviability and maintenance:

rejection of traditions by younger generations: the pull ofmodernity

lack of respect for indigenous knowledge: IKS trivialised as“unscientific”

acculturation and diffusion: migration, urbanization

unauthorized commercial exploitation: challenges posed bynew technologies

Page 5: The Protection of Traditional Knowledge and Traditional Cultural … · 2011-05-24 · handmade carpets, and then 2. Identify the means to establish and enforce rights in them, nationally

Aspirations

Indigenous peoples, local communities and many States call for:

recognition, safeguarding and nurturing of TK and TCEs ascontribution to sustainable development

promotion of the value and utility of TK and TCEs

reciprocity among knowledge providers and knowledge users

rewarding of custodians of local knowledge systems as theyconserve and adapt them to meet contemporary needs

the ‘protection’ of TK and TCEs against unauthorized third partyaccess and use

Page 6: The Protection of Traditional Knowledge and Traditional Cultural … · 2011-05-24 · handmade carpets, and then 2. Identify the means to establish and enforce rights in them, nationally

What has this to do with intellectual property (IP)?

does IP offer the right incentives to meet the needs of TK andTCE holders?

What do conventional IP systems say about TK and TCEs?

what does ‘IP protection’ mean?

Which options are there for recognizing and protecting TK and TCEsas IP?

update on negotiations in the WIPO IGC

Page 7: The Protection of Traditional Knowledge and Traditional Cultural … · 2011-05-24 · handmade carpets, and then 2. Identify the means to establish and enforce rights in them, nationally

Intellectual property and TK/TCEs – aconceptual and ethical mismatch?

“A song or story is not acommodity or a form ofproperty but one of themanifestations of anancient and continuingrelationship betweenpeople and their territory”

(Daes, 1995)

Page 8: The Protection of Traditional Knowledge and Traditional Cultural … · 2011-05-24 · handmade carpets, and then 2. Identify the means to establish and enforce rights in them, nationally

“Intellectual property” – creations and innovations of the humanmind

Intellectual property “protection” – provides creators and innovatorswith possibility to regulate access to and use of their works if theyso wish

• IP: proprietary (eg., exclusive rights) and non-proprietaryrights (eg., moral rights, right to compensation)

• Balance and proportionality: IP rights do not provide perfectcontrol: limitations and exceptions/the public domain

• IP “protection” is not equivalent to“preservation/safeguarding”

• The world of IP is in transformation – e.g. a2k movement

Page 9: The Protection of Traditional Knowledge and Traditional Cultural … · 2011-05-24 · handmade carpets, and then 2. Identify the means to establish and enforce rights in them, nationally
Page 10: The Protection of Traditional Knowledge and Traditional Cultural … · 2011-05-24 · handmade carpets, and then 2. Identify the means to establish and enforce rights in them, nationally

TKTCEs

“Traditional knowledge” (TK) and “traditional cultural expressions”(TCEs)

Page 11: The Protection of Traditional Knowledge and Traditional Cultural … · 2011-05-24 · handmade carpets, and then 2. Identify the means to establish and enforce rights in them, nationally

What do IP law and practice say about TK

Patents available for any inventions in all fields of technology providedthey are new, involve an inventive step and are capable of industrialapplication (certain exclusions possible)

International IP law largely silent on TK

“traditional” knowledge regarded as “public domain” fromperspective of IP system

“TK-based innovations” may be protected as inventions; TK mayalso be protected as confidential information and against unfaircompetition

A few sui generis mechanisms and laws present in national andregional legal systems: little experience with them

Several “misappropriation” cases; little empirical study of their effects

Page 12: The Protection of Traditional Knowledge and Traditional Cultural … · 2011-05-24 · handmade carpets, and then 2. Identify the means to establish and enforce rights in them, nationally

What do IP law and practice say about TCEs

“Traditional” cultural expressions largely regarded as “publicdomain”

Yet, pockets of protection available in international IP law

Contemporary versions are protectable under copyright andrelated rights law

Many sui generis mechanisms and systems

Several “misappropriation” cases; little empirical study of theireffects

Page 13: The Protection of Traditional Knowledge and Traditional Cultural … · 2011-05-24 · handmade carpets, and then 2. Identify the means to establish and enforce rights in them, nationally

What do we mean by“protection” of TK/TCEs?

Positive protection(an IP right inTK/TCEs, toauthorize or preventuse)

Defensive protection(avoidance of IPrights in TK/TCEs –eg., TKDL)

Setting IP-relatedobjectives

- what do you want to stopothers doing?

- what do you wantTK/TCE holders to be ableto do?

Unauthorized commercialuse, distortion, “passingoff”, no attribution,disclosure of secretTK/TCEs

Ownership, PIC, benefit-sharing, prevention,

What optionsare there toachieve theseobjectives?

Page 14: The Protection of Traditional Knowledge and Traditional Cultural … · 2011-05-24 · handmade carpets, and then 2. Identify the means to establish and enforce rights in them, nationally

What options are there for attainingIP objectives?

1. Policy/legislativeExisting IP law

Adapted or new (sui generis) IP law

Customary law, and/or

Non-IP law

Page 15: The Protection of Traditional Knowledge and Traditional Cultural … · 2011-05-24 · handmade carpets, and then 2. Identify the means to establish and enforce rights in them, nationally

copyright and patent protection for contemporary creation and innovation basedon TK

copyright for unpublished works of unknown authors (Berne, 15.4)

related rights protection of recordings of cultural expressions and for “performersof expressions of folklore” (WIPO Performances and Phonograms Treaty, 1996)

databases and compilations of TK can be protected

collective trademarks/GIs/appellations of origin can protect TK/TCE products(eg., foods, agricultural products, crafts) against passing off – indirect protection

protection of confidential information for secret TK/TCEs

protection against “unfair competition”

Example: can existing IP systems protect TK and/or TCEs,directly or indirectly?

Page 16: The Protection of Traditional Knowledge and Traditional Cultural … · 2011-05-24 · handmade carpets, and then 2. Identify the means to establish and enforce rights in them, nationally

What options are there for attainingIP objectives?

1. Policy/legislative

2. Infrastructure

3. Practical tools

Existing IP law

Adapted or new (sui generis)IP law

Customary law, and/or

Non-IP law

Information systems:databases/inventories

Guidelines and protocols

Contracts/licensing

Dispute resolutionprocedures

Page 17: The Protection of Traditional Knowledge and Traditional Cultural … · 2011-05-24 · handmade carpets, and then 2. Identify the means to establish and enforce rights in them, nationally

WIPO Intergovernmental Committee

Established in 2000; met for the first time in April 2001

IGC was preceded by several years of fact-finding,consultation

IGC: Member States, indigenous and local communities,business, other NGOs

Prevailing view is that a sui generis system is needed toprotect TK and/or TCEs

Page 18: The Protection of Traditional Knowledge and Traditional Cultural … · 2011-05-24 · handmade carpets, and then 2. Identify the means to establish and enforce rights in them, nationally

New IGC mandate 2010-2011

text-based negotiations with the objective of reaching agreement on atext of an international legal instrument (or instruments) which willensure the effective protection of GRs, TK and TCEs

a clearly defined work program. . . four sessions of the IGC and threeinter-sessional working groups, in the 2010-2011 biennium

build on the existing work of the IGC . . . use all WIPO workingdocuments, including WIPO/GRTKF/IC/9/4, WIPO/GRTKF/IC/9/5 andWIPO/GRTKF/IC/11/8A

the Committee is requested to submit to the 2011 General Assemblythe text of an international legal instrument (or instruments). TheGeneral Assembly in 2011 will decide on convening a DiplomaticConference

“without prejudice to the work pursued in other fora”

“bearing in mind the Development Agenda recommendations”

Page 19: The Protection of Traditional Knowledge and Traditional Cultural … · 2011-05-24 · handmade carpets, and then 2. Identify the means to establish and enforce rights in them, nationally

Program

IGC May2010

IWG 1 July2010

IGCDecember2010

IWGs 2 and 3February/March2011

IGC May2011

IGC July 2011 GASeptember2011

Page 20: The Protection of Traditional Knowledge and Traditional Cultural … · 2011-05-24 · handmade carpets, and then 2. Identify the means to establish and enforce rights in them, nationally

Key policy questions

Why?

What?

Who?

Which model best promotes creativity and innovation,spurs economic growth, maintains a robust publicdomain and respects the interests of indigenous andlocal communities as well as of the broader public?

Such a model should complement and not conflictwith protection already available under conventionalIP systems, as well as under non-IP systems

Page 21: The Protection of Traditional Knowledge and Traditional Cultural … · 2011-05-24 · handmade carpets, and then 2. Identify the means to establish and enforce rights in them, nationally

Applying the IGC to Iranian handmadecarpets

Production methods, know-how, weaving skills, knots –“traditional” knowledge?

Designs, motifs, styles, colours and other artisticexpressions – “traditional” cultural expressions?

“Persia” and other indications of source – “traditional”cultural expressions?

Wools, fibres, plants used for dyes – genetic resources?

Page 22: The Protection of Traditional Knowledge and Traditional Cultural … · 2011-05-24 · handmade carpets, and then 2. Identify the means to establish and enforce rights in them, nationally

I. The protection of “traditional knowledge”(WIPO/GRTKF/IC/18/5)

ObjectivesGeneral guiding principlesSubstantive articles

1. Subject Matter of Protection2. Beneficiaries of Protection3. Protection against Misappropriation4. Prior Informed Consent, Fair and Equitable Benefit-Sharing, and Recognition of

Knowledge Holders5. Administration and Enforcement of Protection6. Exceptions and Limitations7. Duration of Protection8. Formalities9. Transitional Measures10. Consistency with the General Legal Framework11. International and Regional Protection

Page 23: The Protection of Traditional Knowledge and Traditional Cultural … · 2011-05-24 · handmade carpets, and then 2. Identify the means to establish and enforce rights in them, nationally

Subject matter of protection: what is TK?

Draft Article 1

Two parts:

general nature of TK (articles 1(1) and 1(2)

which qualities TK should have in order to beprotected (article 1(3)

Page 24: The Protection of Traditional Knowledge and Traditional Cultural … · 2011-05-24 · handmade carpets, and then 2. Identify the means to establish and enforce rights in them, nationally
Page 25: The Protection of Traditional Knowledge and Traditional Cultural … · 2011-05-24 · handmade carpets, and then 2. Identify the means to establish and enforce rights in them, nationally

Beneficiaries and rightsholders

Draft Article 2

Close link with Draft Article 1

Two aspects:

Identification of beneficiariesChoice of term to describe them

International vs. national vs. customary laws

Page 26: The Protection of Traditional Knowledge and Traditional Cultural … · 2011-05-24 · handmade carpets, and then 2. Identify the means to establish and enforce rights in them, nationally
Page 27: The Protection of Traditional Knowledge and Traditional Cultural … · 2011-05-24 · handmade carpets, and then 2. Identify the means to establish and enforce rights in them, nationally

II. The protection of “traditional cultural expressions”WIPO/GRTKF/IC/18/4 Rev.

ObjectivesGeneral guiding principlesSubstantive articles

1. Subject Matter of Protection2. Beneficiaries of Protection3. Scope of Protection4. Collective Management of Rights5. Exceptions and Limitations6. Term of Protection7. Formalities8. Sanctions, Remedies and Exercise of Rights9. Transitional Measures10. Relationship with IP Protection and other forms of Protection, Preservation and

Promotion11. National Treatment

Page 28: The Protection of Traditional Knowledge and Traditional Cultural … · 2011-05-24 · handmade carpets, and then 2. Identify the means to establish and enforce rights in them, nationally

Subject matter of protection: what areTCEs?

Draft Article 1

Two parts:

general nature of TCEs (articles 1(1) and 1(2))

which qualities TCEs should have in order to beprotected (article 1(3))

Page 29: The Protection of Traditional Knowledge and Traditional Cultural … · 2011-05-24 · handmade carpets, and then 2. Identify the means to establish and enforce rights in them, nationally
Page 30: The Protection of Traditional Knowledge and Traditional Cultural … · 2011-05-24 · handmade carpets, and then 2. Identify the means to establish and enforce rights in them, nationally

Formalities

Draft Article 7 of 18/4 Rev.

Options:

No formalities

Optional registration/documentation

Mandatory registration/documentation

Registration can be ‘constitutive’ or ‘declaratory’

Page 31: The Protection of Traditional Knowledge and Traditional Cultural … · 2011-05-24 · handmade carpets, and then 2. Identify the means to establish and enforce rights in them, nationally
Page 32: The Protection of Traditional Knowledge and Traditional Cultural … · 2011-05-24 · handmade carpets, and then 2. Identify the means to establish and enforce rights in them, nationally

Save the date!

International Technical Symposium on theDocumentation and Registration of TK and TCEs

Muscat, Oman

June 26 to 28, 2011

Page 33: The Protection of Traditional Knowledge and Traditional Cultural … · 2011-05-24 · handmade carpets, and then 2. Identify the means to establish and enforce rights in them, nationally

Some of the key questions, also for Iranian handmadecarpets

Definitional issues

What is “traditional” knowledge? What are “traditional” cultural expressions?

Who should be the beneficiaries of new rights in TK/TCEs?

Technical issues

How would special protection for TK/TCEs interact with protection available underexisting IP?

How should publicly available TK/TCEs and transboundary (“shared”) TK/TCEs beaddressed?

Operational issues

What role, if any, should registration/documentation play in the protection of TK/TCEs?

How would new rights be managed and enforced?

Page 34: The Protection of Traditional Knowledge and Traditional Cultural … · 2011-05-24 · handmade carpets, and then 2. Identify the means to establish and enforce rights in them, nationally

IGC 18: May 9 to 13, 2011

IGC 19: July 18 to 22, 2011

WIPO General Assembly: September 2011

Page 35: The Protection of Traditional Knowledge and Traditional Cultural … · 2011-05-24 · handmade carpets, and then 2. Identify the means to establish and enforce rights in them, nationally

Concluding remarks

An historic opportunity for intellectual property

First normative process in IP initiated and led bydeveloping countries

At the cutting edge of new approaches to best modelsfor generation and regulation of knowledge

New international legal instrument(s) would representa major normative shift in IP

IGC = 100% Pure Development Agenda

Page 36: The Protection of Traditional Knowledge and Traditional Cultural … · 2011-05-24 · handmade carpets, and then 2. Identify the means to establish and enforce rights in them, nationally

Sign up for the TK e-Newsletter andUpdates

[email protected]@wipo.int

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